WASHINGTON – In the spring of 1985, a 35-year-old Justice Department lawyer, Samuel A. Alito Jr., warned the Reagan administration not to start a frontal assault on Roe v. Wade, the historic ruling that declared a constitutional right. to abortion. The Supreme Court was unwilling to overturn it, he said, so urging him to do so could be counterproductive.
In a note offering advice on two pending cases that challenged state laws governing abortion, Mr. Alito advocated focusing on a more incremental argument: the court should keep the regulations as reasonable. This strategy “would advance the goals of bringing about the eventual annulment of Roe v. Wade and, in the meantime, mitigating its effects.”
More than three decades later, Judge Alito has fulfilled that vision, consolidating his place in history as the author of a consequent ruling that overturned Roe, along with a 1992 precedent that reaffirmed that decision, Planned Parenthood. against Casey. The investment means tens of millions of women in conservative-controlled states are losing access to abortion.
The move has focused on a man who, on the other hand, has been a low-profile member of the court’s conservative bloc since his appointment by President George W. Bush more than a decade ago. He has also drawn attention to how he slowly and patiently tried to eliminate abortion rights throughout his career before overthrowing them in the majority opinion on Friday.
“Roe was hugely wrong from the start,” Judge Alito wrote. “Their reasoning was exceptionally weak and the decision has had detrimental consequences. And far from reaching a national agreement on the abortion issue, Roe and Casey have ignited the debate and deepened the division.”
Born in 1950 into a Catholic and Italian-American family, Judge Alito grew up in New Jersey. Two Conservative flag bearers inspired his interest in political conservatism, he noted later, pointing to the writings of William F. Buckley Jr. and Barry M. Goldwater’s 1964 presidential campaign.
Mr. Alito became interested in constitutional law during college, in large part because he disagreed with the Supreme Court at the time about criminal proceedings, the establishment clause and redistribution, he wrote. In the 1960s, the court issued rulings on those issues that conservatives disliked, such as protecting the rights of suspects in police custody, limiting prayer in public schools, and requiring constituencies to have roughly equal populations.
He was a freshman law student at Yale Law School in 1973 when the Supreme Court ruled on Roe. While progressives hail the case as a transcendental outcome for women’s equality and reproductive freedom, its constitutional reasoning drew sharp criticism across ideological lines, a pattern that Judge Alito emphasized with apparent pleasure in your opinion.
Even “abortion supporters have found it difficult to defend Roe’s reasoning,” he wrote. A prominent constitutional scholar wrote that he would “vote for a statute very similar to the one the Court ends.”[ed] write “if he was” a legislator, “but his assessment of Roe was memorable and brutal: Roe” was by no means a constitutional right “and” gave almost no sense of the obligation to try. “
Judge Alito cited a 1973 Yale Law Review article about John Hart Ely’s decision, which he was teaching at the time.
After graduating, he became a secretary to a judge at the U.S. Court of Appeals for the Third Circuit, and eventually got a job as a federal prosecutor in New Jersey. Once Ronald Reagan won the 1980 presidential election, he followed in the footsteps of many young Conservative lawyers, joining the administration and working in the attorney general’s office.
Among political appointees, overthrowing Roe was a primary long-term goal for the Reagan administration. He fused the desires of elite conservative legal thinkers with those of the religious right. But in 1983, in the face of objections from the Reagan administration, the Supreme Court reaffirmed Roe.
In the spring of 1985, both cases arose defying state laws governing abortion, even requiring doctors to tell women seeking the procedure detailed information about their risks and “unpredictable harmful effects.” fetal development and the availability of adoption services. or maintenance of the paternal child.
Updated
June 25, 2022, 3:58 PM ET
In a memorandum on the cases, Mr. Alito showed not only tactical insight, but personal passion, he forced himself with the objection of a judge that forcing women to hear details about fetal development before their abortions would cause “emotional distress, anxiety, guilt and, in some cases “. cases increased physical pain. “
Well, he wrote: These results “are part of the responsibility of moral choice.”
Later that year, Mr. Alito applied for another place in the Department of Justice, proudly citing his role in developing a strategy for such cases. “I personally believe very firmly,” he wrote in a petition, that “the Constitution does not protect the right to abortion.”
Years later, when these documents were revealed during his confirmation in the Supreme Court, he assured senators that while that statement reflected his views in 1985, he would address abortion cases with an open mind as justice, with the due to precedents and without an ideological agenda. .
“When someone becomes a judge,” he said, “you really have to put aside the things you did as a lawyer at earlier times in your legal career and think about legal issues in the same way that a judge thinks about issues. legal “.
Before Judge Alito joined the Supreme Court, he served on the United States Court of Appeals for the Third Circuit. As an appellate judge, he did not have the power to overturn Roe. But at times he seemed to be looking for ways to reduce it in abortion-related cases, fitting in with his formative advice during the Reagan administration.
Most notable was Planned Parenthood v. Casey, the case in which the Supreme Court reaffirmed Roe’s central ownership but allowed states to impose more restrictions during the first quarter. It involved a challenge to a Pennsylvania law that imposed requirements before an abortion, including a waiting period, parental consent for minors, and notification to a woman’s husband.
Before reaching the higher court, the case went before a Third Circuit court that included Judge Alito. The other two court judges voted in favor of most of the law, but overturned the provision that required the spouse to be notified. Judge Alito wrote separately to dissent from this part, saying he should also stay.
This requirement, she argued, did not impose an “undue burden” on access to abortion, so it was sufficient that “Pennsylvania had a legitimate interest in fostering the husband’s interest in the fate of the fetus.” “. Nor, he wrote, should judges guess the decisions of the state legislature on the appropriateness of various exceptions it included for certain cases.
And in 2016 and 2020, he was among dissidents when the court voted to limit the repeal of nearly identical laws in Texas and Louisiana that strictly regulated abortion clinics in a way that forced many to close.
The majority said in 2016 that Texas law imposed an undue burden on access to abortion and in 2020 that a challenge to Louisiana law was controlled by the previous precedent. Both times Judge Alito wrote lengthy opinions saying that challenges to these laws should have been rejected on procedural grounds.
But in 2016 and 2020, as in 1985, a new frontal attack on the right to abortion would have failed. With Judge Ruth Bader Ginsburg still on the bench, there were no five votes to overturn Roe. This year, a moderate, slower-burning approach was no longer needed.
On the objections of Chief Justice John G. Roberts Jr., who agreed that a Mississippi law banning abortion should be maintained after 15 weeks, but said the “dramatic and consequent majority ruling it is unnecessary to decide the case before us “and violated the principle of judicial restraint: the time had come for a direct assault on Roe.
“Abortion presents a deep moral issue,” Judge Alito wrote. “The Constitution does not prohibit the citizens of each regular state or prohibit abortion. Roe and Casey claimed that authority. We now annul these decisions and return this authority to the people and their elected representatives. “